Wednesday, September 14, 2016

Who Gets To Be A Parent?

by Sherry F. Colb

In my column for this week on Verdict, I discuss the case of In the Matter of Brooke S.B., Respondent, v. Elizabeth A. C.C. In this case, the New York Court of Appeals overruled an older decision, In the Matter of Alison D. v. Virginia M., the latter of which held that a person lacks standing to seek custody and visitation with respect to a child if that person is neither biologically, adoptively, nor maritally related to the child. This ruling created injustice for many individuals who had been members of same-sex couples and had planned, pre-conception, for the other member of the couple to use artificial insemination to conceive a child who would then belong to both members of the couple. The recent case, Brooke S.B., changes this state of affairs and holds that if two people conceive a child with the intention of the child belonging to the two of them, then the non-biological, non-adoptive (and non-marital) member of the couple has standing to seek custody and visitation as a parent. In the column, I discuss the importance of this decision as a matter of justice as well as the potential problem it might confront in the Supreme Court case of Troxel v. Granville.

In this post, I want to consider the "slippery slope" problem of recognizing too many people's parental rights and acknowledge the strength of this argument. Brooke T. is very clear that it is not granting parental status to anyone who spends a lot of time with a child but limits itself narrowly to people who played a role in the decision to conceive the child as part of a couple. But if we are truly pursuing the best interests of the child, might we not want to embrace a broader definition of parent? For example, in some families, a grandparent plays what is essentially a parental role in a child's life, while the biological parent may play a more secondary role. If the biological parent were to suddenly decide to cut off the grandparent, for whatever reason, would this not be harmful to the child's wellbeing, and wouldn't the harm be of the same sort that would accompany a refusal to recognize the rights of the partner who decided to conceive the child in the first place?

From the perspective of the child, it may not matter very much whether a particular individual played a role in deciding that the child would or would not be conceived. What matters is the day-to-day parenting, involving spending time with the children, taking care of them and their needs, and otherwise being a "parent" to them in the countless way that parents parent their children. One could even imagine a very dedicated and longstanding babysitter fitting into this role. Imagine that a parent works extremely long hours, and it is the babysitter who spends the most time nurturing and taking care of the child. Does the financial arrangement between the parent and the babysitter necessarily mean that the child is not forming the sorts of bonds with the babysitter that, if suddenly broken by whim of the parent, could prove traumatic for the child? Yet I know of no one who would want to extend parental rights to paid childcare professionals or babysitters, and the Supreme Court has already refused to extend them to grandparents.

Perhaps, then, a narrow test for what qualifies a person as a parent--like the one that the New York Court of Appeals developed in Brooke S.B.--is just what the doctor ordered. Though the "best interests of the child" might in theory allow for many and sundry adults who help out and play quasi-parental roles in the child's life to gain access to custody and visitation rights, it may ultimately be best for there to be a decision-maker (or two co-equal decision-makers) who is (or are) presumed to act in the best interests of their child and who will choose who and how many other people are permitted to play parental roles in that child's life.

Sometimes, such people will err, as all parents do on occasion. But that is probably still a better state of affairs than an open courtroom where people with close relationships to a child can march in and demand visitation rights. We must not be too stingy in defining who a parent is, and the court in Brooke stepped away from the stinginess of Alison D. But once we set that definition, we should probably keep it relatively stable and narrow and allow only the people who occupy the parental role to make choices for their children. Though it may "take a village" to raise a child, it would probably be best to keep the village from being able to have standing to come into court and disrupt the lives of an intact family.

3 comments:

Does this impact child support decisions, so that a parent can go after the former partner who is neither biologically, adoptively, nor maritally related but disclaims any parentage? Or is this more of an opt-in only for the out partner?

It seems to me that the law, under all three relevant cases, expects there to be at most two parents for any given child, and does not provide an option for more. While you discuss the hypothetical of a long-term babysitter who may have as much of a parenting role as a parent as discussed here, I think a more common situation would be that of a subsequent significant other of one of the parents.

If, in your hypothetical situation in the Verdict column, Eve and Mary had, post-breakup, become involved with Julie and Sharon respectively, then all four could be equally involved in the care and raising of the infants Barbara and Alice. Under current law, neither Julie nor Sharon would be regarded as parents, and could not make legal decision considering the children under their care, unless either Eve or Mary lost their parental rights. On the other hand, the sisters Barbara and Alice might well consider themselves to have four mommies, and not consider emotionally that Eve and Mary are their "real" parents.

It also does not address other, unconventional family arrangements. If the household of Amy, Bob, and Carl decide to jointly conceive and raise a child, there is no way for all three to be legally recognized as parents, despite their relationship having the same legal status as Mary and Eve's (pre-marriage-equality). The three would have to choose who would be the legal father, and who would be the odd man out (or let a paternity test decide).

First, as noted in the column, this is opinion is likely to matter a lot more regarding past relationships -- before same sex marriage or some other comparable union was legally recognized -- then now. It seems to basically provide a de facto adoption/parenthood standard based on personal action.

But, in recent years, there seems to have been an uptick on unofficial relationships without marriage. Still, this ruling seems to fit into the precedents with some creativity. As perhaps suggested by the second comment, the case discussed is not the grandparents situation. A sort of formal parental arrangement was set up and by law adoptive arrangements are accepted.

An "unmarried couple" set up a parental arraignment. It's possible to consider a wider example (as BB notes) like a scenario where it is set up that a single mom (or dad) from the beginning sets up a grandparent as a co-parent. Or, more than one person (open adoption laws in fact sometimes do something like this including same sex couples raising children with some involvement of the birth parent[s]).

Troxel was ultimately a plurality and Justice Stevens dissented in part because he argued there were a range of possible arrangements. I think there is room for change there. But, not sure how it would apply to this case. See, e.g., "But here we do not consider whether to allow a third party to contest or infringe on those rights; rather, the issue is who qualifies as a "parent" with coequal rights."